Prison officer who assaulted inmates reinstated

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Prison officer who assaulted inmates reinstated

A corrections officer has been reinstated to his job until an appeal is heard regarding the termination of his employment.

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A corrections officer has been reinstated to his job until an appeal is heard regarding the termination of his employment.

The ruling was made by the Supreme Court of New South Wales – Court of Appeal.

Background


Jason Wattie worked as a senior correctional officer with Corrective Services NSW from April 1994.

In May 2016 he was dismissed as a result of three assaults he committed on three inmates. The first assault occurred on 13 September 2014, the second on 19 December and the third on 29 December 2014.

On 11 October 2016 Mr Wattie was successful in his unfair dismissal case against the Industrial Relations Secretary (the respondent) and was reinstated to his job. In light of Mr Wattie’s conduct the Industrial Relations Commission NSW ordered that he was not to be back-paid for the time he was dismissed.

On 28 February 2017 the respondent was unsuccessful in its appeal bid to a full bench of the Commission to have the reinstatement order removed.

Mr Wattie returned to duty on 16 May 2017. On 17 September 2017 he broke his leg in a motorcycle accident and went on sick leave. He expected to be fit to return on 1 February 2018.

On 17 May 2017 the respondent sought judicial review of the reinstatement order made by the Commission.

On 30 November 2017 Judge Adamson held that the Commissioner made an error in granting a reinstatement order and that decision was set aside. Mr Wattie’s unfair dismissal case was remitted to the Industrial Relations Commission. Following this judgement Mr Wattie’s employment was terminated on 30 November 2017.

On 20 December Mr Wattie sought leave to appeal the judgement by Judge Adamson and sought a stay on the orders and decision made.

The law


An order for a stay on a court decision will basically put a freeze on that decision and any orders made until a hearing or appeal can be heard.

Arguments


Mr Wattie argued that the consequences of terminating his employment would put him in a precarious financial situation and a shortfall of $2,276.33 per month. It was also submitted that Mr Wattie had a strong case in the upcoming appeal against Judge Adamson’s decision to set aside his reinstatement.

Mr Wattie further argued that the balance of convenience favoured a stay of Judge Adamson’s decision. Mr Wattie would not be able to recover the earnings he would have suffered pending the hearing of his application even if he did win the appeal.

It was also pointed out that there were no difficulties during Mr Wattie’s return to employment in 2017 and Correctional Services would suffer no hardship in allowing Mr Wattie to remain until the outcome of his appeal.

The respondent argued that its position had always been that the findings of misconduct against Mr Wattie warranted termination. Any reinstatement would not send a good message to other staff or the public, in that an officer found guilty of three assault offences against inmates continued to act as a custodian of inmates.

The respondent further argued that the chance of success of Mr Wattie’s appeal, even though it had merit, was low. Moreover, the respondent noted that if Mr Wattie lost the appeal he would not be able to pay back the money he earned during the period of the stay.

Legal question


The Supreme Court was tasked with determining whether to grant a stay of Judge Adamson’s decision and consequently reinstate Mr Wattie to his job until his appeal was heard.

Decision


The court looked at what the interests of justice required;  namely, the competing rights of the parties and the balance of convenience. It was ultimately a matter of the court’s discretion whether to grant a stay or not.

Judge McColl, despite some hesitance to speculate on the upcoming appeal’s success, pointed out the respondent’s admission that Mr Wattie’s case had merit.

The court also noted the financial loss to be suffered by Mr Wattie and said that loss could not be ameliorated at a later date even if his case was successful.

In the interests of justice and the balance of convenience a stay was ordered as it would return both parties to the position they occupied until the appeal was heard.

Wattie v Industrial Relations Secretary [2018] NSWCA 5 (29 January 2018)

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